Johnson v. State

• Decision Date: 17 November 1999
• Docket Number: No. 49A02-9901-JV-15.,49A02-9901-JV-15.
• Citation: 719 N.E.2d 445
• Parties: Carlos JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

719 N.E.2d 445

Carlos JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-9901-JV-15.

Court of Appeals of Indiana.

November 17, 1999.

Steven J. Halbert, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Sarah E. Scherrer, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

STATON, Judge.

Carlos Johnson appeals his adjudication as a delinquent child. He raises three issues on appeal, which we restate as:

I. Whether the evidence is sufficient to support Johnson's adjudication as a delinquent child based upon the commission of disorderly conduct.

II. Whether Johnson's adjudication as a delinquent child contravenes Article 1, § 9 of the Indiana Constitution.

III. Whether Johnson's adjudication as a delinquent child contravenes the First and Fourteenth Amendments of the United States Constitution.

We affirm.

The facts most favorable to the delinquency finding reveal that Johnson and his mother were arguing at their home. Johnson told his mother that he did not intend to comply with certain terms of his probation that arose from a juvenile delinquency determination. Johnson's mother called the police.

When the police arrived Johnson was sitting in a chair eating candy. Indianapolis Police Officer Steve Atzhorn asked Johnson "what the problem was." Record at 145. Johnson looked at Atzhorn and shrugged. Atzhorn asked Johnson the same question again. Johnson became upset and began arguing with Atzhorn, his mother, and a second officer. Johnson stated that he was not going to attend the "classes he was supposed to be going to." Record at 145. Atzhorn testified that because Johnson was speaking in a voice louder than everyone else, no additional questions could be asked regarding the situation. Atzhorn asked Johnson to be quiet. Johnson continued arguing with Atzhorn and his mother. Atzhorn arrested Johnson. Johnson was adjudicated a delinquent child based upon disorderly conduct, which is a Class B misdemeanor when committed by an adult.¹ He appeals.

I. Sufficiency of the Evidence

Johnson contends that the evidence is insufficient to support a finding of disorderly conduct. When the State seeks to have a juvenile adjudicated as a delinquent for committing an act that would be a crime if committed by an adult, the State must prove every element of the offense beyond a reasonable doubt. Al-Saud v. State, 658 N.E.2d 907, 908 (Ind.1995). Upon review, we apply the same sufficiency standard used in criminal cases. Id. at 909. When reviewing a claim of insufficient evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995),reh. denied. We look to the evidence and the reasonable inferences therefrom that support the judgment. Id.

IC XX-XX-X-X provides, in pertinent part: "A person who recklessly, knowingly, or intentionally ... makes unreasonable noise and continues to do so after being asked to stop ... commits disorderly conduct...." Johnson contends that the State has failed to prove the unreasonable noise element of this offense. Specifically, Johnson argues that evidence of the volume of his speech is crucial to a finding that he made unreasonable noise, and that the evidence indicates only that he spoke louder than Officer Atzhorn and his mother. Johnson cites Atzhorn's testimony that Johnson was not yelling or screaming. Johnson suggests that he was simply trying to be heard in a room with three people arguing, and that the fact that he was louder than the others does not support the conclusion that he made unreasonable noise.

Johnson is correct in his assertion that the volume of his speech is critical in determining whether it was unreasonable within the meaning of IC XX-XX-X-X. As our supreme court has stated, "the criminalization of `unreasonable noise' was `aimed at preventing the harm which flows from the volume' of noise." Whittington v. State, 669 N.E.2d 1363, 1367 (Ind.1996) (quoting Price v. State, 622 N.E.2d 954, 966 (Ind.1993) reh. denied). Therefore, in order to support a conviction for disorderly conduct, "[t]he State must prove that a defendant produced decibels of sound that were too loud for the circumstances." Whittington, 669 N.E.2d at 1367 (emphasis in original). Significantly, the supreme court observed in Whittington that a loud noise could be found unreasonable where it "disrupt[s] police investigations." Id.

Here, the evidence reveals that Johnson argued in a voice louder than the voices of others in the room. Johnson's volume prevented the police officers from asking additional questions in an effort to resolve the situation. This was true both before and after Officer Atzhorn asked Johnson to be quiet. It makes no difference that Johnson was not yelling or screaming. The question is whether Johnson's volume was too loud under the circumstances. Id. Because Johnson's loud manner of speaking disrupted a police investigation, the trial court's conclusion that Johnson made unreasonable noise is supported by the evidence. See id. The evidence is sufficient to support Johnson's adjudication as a delinquent child.

II. Article 1, § 9 of the Indiana Constitution

Johnson argues that his right to speak under Article 1, § 9 of the Indiana Constitution was violated by application of the disorderly conduct statute to the facts of this case. Section 9 provides: "No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible." In Whittington, our supreme court created a two-step inquiry for reviewing the constitutionality of an application of the disorderly conduct statute under § 9. 669 N.E.2d at 1367. "First, a reviewing court must determine whether state action has restricted a claimant's expressive activity. Second, if it has, the court must decide whether the restricted activity constituted an `abuse' of the right to speak." Id. Here, Johnson has satisfied the first prong by establishing that the State restricted his expressive activity. A person's conviction for making unreasonable noise based solely on his loud speaking during a police investigation satisfies this prong. Id. at 1370. A delinquency adjudication based upon the same type of conduct is also State action restricting expressive activity.

In order to meet the second prong, Johnson must prove that "the State could not reasonably conclude that the restricted expression was an `abuse'" of Johnson's right to speak, and thus, that the State could not properly proscribe the conduct, pursuant to its police power, via the disorderly conduct statute. Id. at 1369. "One way a claimant can try to meet this burden is to show that his or her expressive activity was political. If a claimant succeeds in that attempt, the State must demonstrate that its action has not materially burdened the claimant's opportunity to engage in political expression." Id. Johnson argues that his expressive activity was political.

The supreme court discussed the parameters of political expression in Whittington.

[T]he common feature of political expression is reference to state action.... Expressive activity is political ... if its point is to comment on government action, whether applauding an old policy or proposing a new one, or opposing a candidate for office or criticizing the conduct of an official acting under color of law.... In contrast, where an individual's expression focuses on the conduct of a private party—including the speaker himself or herself—it is not political.

Id. at 1370. The supreme court noted that the nature of the expression should be judged by an objective standard, and that the claimant bears the burden of establishing that his expression would have been understood as political. Id. "If the expression, viewed in context, is ambiguous, a reviewing court should find that the claimant has not established that it was political and should evaluate the constitutionality of any state-imposed restriction of the expression under standard rationality review." Id.

In the present case, Johnson argued with the officers and his mother, and stated that he was not going to attend the "classes he was supposed to be going to." Record at 145. Johnson asserts that he was commenting on the terms of his earlier probation, and was expressing an opinion that the "conditions were unfair and onerous and he did not want to abide by them." Appellant's Brief at 8. Thus, he argues that he was criticizing the State for imposing these unfair conditions.

We conclude that Johnson's comments are ambiguous. Although it is not implausible that Johnson was criticizing the State for imposing unfair probation conditions, it is equally plausible that Johnson was simply commenting on his own conduct and intentions. Johnson merely stated that he was not going to attend the required classes. This comment could be construed to reflect nothing more than Johnson's opinion that he can do what he wants, when he wants. Under this interpretation, Johnson was saying nothing about State action. Because Johnson has not established that his comments were political, "we must apply rationality review in determining whether the state could have concluded that [Johnson's] expressive activity, because of its volume, was an `abuse' of the right to speak or was, in other words, a threat to peace, safety, and well-being." Id. at 1371.

Under the facts of this case, it is reasonably conceivable that Johnson's loud manner of speaking interfered with a police investigation into the reasons why Johnson's mother called them to her home. The police must be able to perform their work without unreasonable interruption when they are conducting a legitimate investigation. Therefore, the State could have rationally concluded that Johnson's conduct...